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The View from the Legislature
The 73rd session of the Oregon Legislature started out with the usual flurry of bills. So far we are tracking well over 350, with the number rising daily. Last session we were successful in stopping the most egregious legislative proposals because neither Republicans nor Democrats controlled the equally divided Oregon Senate. This session, the House continues to be controlled by neo-conservative Republicans but the Senate Democrats have gained an 18-12 majority. Once again, we expect some very bad bills to pass the House but we expect it may be even more difficult for us to stop some proposals in the Senate if the issues relate to law enforcement or other ćhot-buttonä topics.
The scope of our work is as broad as there are civil liberties issues. We are lobbying on bills that deal with: equal protection, reproductive freedom, religious freedom, due process, criminal laws, juvenile rights, post 9/11 issues, and privacy ö to name a few. For the most part we find ourselves either in the position of opposing the legislation or offering amendments to remove the negative civil liberties implications. We are helping to draft a civil liberties resolution urging Congressional reform of the USA-PATRIOT Act and we will be pushing hard for its passage.
There are a number of proposals affecting the rights of gay, lesbian, bisexual and transgender Oregonians. On the positive side is HB 2519, introduced on behalf of Basic Rights Oregon. This bill would prohibit discrimination on the basis of sexual orientation in employment, housing, public accommodations and education. In addition, SB 360 would expand coverage under the Oregon hate crimes law to protect persons based on gender identity. In 1989, we were instrumental in expanding the Oregon intimidation law to provide protection based on the actual or perceived sexual orientation of the victim, but violence against trangender Oregonians has been on the rise in recent years. The ACLU of Oregon supports both proposals.
Of course, lurking in the shadows is the issue of same-sex marriage and possible legislation on civil unions. Right now the legislature is in a holding pattern, pending the Oregon Supreme Courtās decision in our case, Li & Kennedy v. Oregon. There is no guarantee that the Court will rule during the session and it is impossible to predict how this issue will play out during the next several months. We will support a civil union bill only if it gives all the privileges and responsibilities of marriage to same-sex couples that are currently enjoyed by opposite-sex married couples.
Another bill we are watching closely is HB 2108, introduced by the Department of Transportation. As drafted, this proposal would give authority to DMV to retain documents presented or submitted to the Department, which a DMV employee believes are fraudulent and then turn it over to the police. Our concerns, shared by many in the Latino community, is that DMV employees are not sufficiently trained to identify fraudulent documents and have already seized legal documents from individuals in the immigrant community creating great hardship. As of this writing, DMV is working on amendments, but they do not address all of our concerns.
Back again are the usual anti-abortion proposals, including requiring a woman to wait 24-hours and receive biased information prior to obtaining abortion services (HB 2532). This year we add a new twist, the issue of so-called fetal homicide. This is a priority issue for Right to Life and their bill, HB 2020, would expand the aggravated murder law by defining a fetus as a human life and adding it to the list of elements that make a defendant eligible for a death sentence. The bill does not require that the defendant knew that the woman was pregnant for the aggravating element to apply. (See separate story with our testimony.)
There are a number of other proposals expanding Oregonās death penalty law. The first, SB 409, would expand the definition of aggravated murder (making a person subject to a death sentence) to include reserve police officers. This proposal was also introduced last session and did not proceed under a veto threat by Governor Kulongoski. HB 2485, in addition to increasing criminal penalties around methamphetamine, would also expand the death penalty to include cases in which the victim is under 14 years of age and was a result of manufacturing or attempting to manufacture meth. The ACLU opposes this law and any expansion of the death penalty.
SB 249 sponsored by the Oregon Advocacy Center would specifically bar execution of persons who have mental retardation. Since the U.S. Supreme Court has now ruled that it is unconstitutional to execute a mentally retarded defendant, the legislative controversy revolves around when evidence of mental retardation is introduced in a criminal trial and the factors the jury must consider. This proposal was introduced during the 2003 session but died after the Oregon District Attorneys Association opposed its passage. The ACLU of Oregon supports this bill.
Criminal Due Process
There are a number of proposals this session to expand the statute of limitations on various criminal laws, particularly sex-related crimes. The reason that statutes of limitations exist for all crimes (with the exception of murder) is that our justice system relies on bringing charges within a reasonable amount of time for persons to defend themselves. Each session we see proposals that usually provide what might be considered modest expansions of the time-lines necessary to bring charges. However, taken together they undermine the fundamental protections we have established in our criminal justice system.
We testified against SB 200 that would have removed the statute of limitations on all sex-related crimes when DNA has been collected. In 2001, the legislature expanded the law in this area, beyond the 3-year statute of limitations to 12 years. Relying on the advance of DNA technology, the proponents of this bill now argue that the Legislature should remove all barriers for future prosecution. In addition to making it extremely difficult for a person to defend against a crime that happened long ago, we know that the use of DNA evidence is only as good as the humans who handle it. Wrongful convictions of innocent people based solely on DNA have already occurred because DNA samples degenerate, or can be mishandled and misread.
DNA Innocence Law
In 2001, we were instrumental in gaining approval for a law that allows convicted defendants to get access to DNA testing to prove their innocence. The law has a sunset provision and without legislative action this session, it will expire at the end of this year. Prosecutors have agreed to remove the sunset provision, but we believe further changes to the law should also occur. Currently someone who pled guilty cannot use the law and we believe that limitation should be removed. In addition, the law is silent on any requirements for retention by law enforcement of biological material. We are concerned that there is no statewide uniform protection for handling and maintenance of evidence after a person has been convicted. Without biological evidence, which previously could not have been tested, the law is of little practical use. The House Judiciary Committee is currently considering our amendments.
, ACLU of Oregon
Last updated October 19, 2005